Sanctions for the Loss of Ephemeral Messaging

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Just how “ephemeral” are so-called ephemeral messages?  In this article, former United States magistrate judge Ronald J. Hedges and Gail Gottehrer explore issues surrounding the potential for spoliation sanctions under Fed. R. Civ. P. 37 (e) for loss of ephemeral messages and lay the foundation for why eDiscovery and information governance best practices need to be extended to address this popular method of communication.

Reproduced with permission. Published June 9, 2020. Copyright 2020 by The Bureau of National Affairs, Inc. (800-372-1033)

About the Authors

Gail Gottehrer
Law Office of Gail Gottehrer LLC

Gail Gottehrer is the Founder of the Law Office of Gail Gottehrer LLC. Her practice focuses on emerging technologies, including autonomous vehicles, connected vehicles, AI, the Internet of Things, robots, biometrics and facial recognition technology, and the privacy laws, cybersecurity requirements and ethical issues associated with the data these technologies collect and use. She is one of the few defense lawyers to have been involved in the trial of a class action to verdict before a jury.

Gail was selected as one the Profiles in Diversity Journal’s 2017 Women Worth Watching in STEM and one of the Connecticut Technology Council’s 2016 Women of Innovation. She is a graduate of the University of Pennsylvania Law School.

Ronald J. Hedges
Senior Counsel, Dentons US LLP

Ronald J. Hedges, J.D., is a Senior Counsel with Dentons US LLP. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2017. Mr. Hedges is a frequent writer and speaker on various topics related to electronic information and is the principal author of Managing Discovery of Electronic Information: A Pocket Guide for Judges, Third Edition (Federal Judicial Center: 2017). His full biography is available at

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About the Author

Gail Gottehrer & Ronald J. Hedges


  • This article justifies why IM programs are, I would argue, now IM/DM programs. Data moves from being a type of info being managed, as defined old school IM/RM policy, to that of the status DMBok and associations like DAMA have been trying to argue for – an entire program where Data Management practices marry into the fold of IG. All IM programs need DM skills and knowledge and thus should migrate, transform or insert other buzzword, to the extent that they become one IM/DM (IG) program that can talk intelligently to data issues as competently as they had previously to document issues.

    This is a great article to be shared widely within the ARMA Community. For me, the line – “…the data at issue here are ephemeral. They exist only until the tuning engineer makes the next adjustment, and then the document changes.” is something many of us have been touting for over a decade. Data in a database appears the same way goo does in a lava lamp. It continues to morph, shape shift, and keep evolving and it will do unless designs are in place to capture a point in time action. Something very often, if not all the time, passed over in DB requirements gathering.

    Thanks for publishing and sharing this piece ARMA Magazine.

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